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SCOTUS Restricts Water Rights for Navajo Nation

Photo credit: Leah Hogsten \ The Salt Lake Tribune

By Hunter Marion

On June 22nd, 2023, the U.S. Supreme Court ruled in Arizona v. Navajo Nation (2023) that the United States was not responsible for securing access to clean, fresh water for the Diné people. This is yet another blatant attack on citizens’ rights to clean water, such as what happened in Sackett v. EPA (2023), and another harmful decision in a string of highly controversial rulings this last month.

The argument at the heart of the case was whether an 1868 treaty signed between the Navajo Nation and the U.S. government included providing the Diné with direct, reliable access to the Colorado River watershed. The treaty specified that the Nation would be given sufficient resources that allowed for suitable agriculture in their “new, permanent home.” The Diné rightly assumed that this would include infrastructure that accessed the river’s water.

The Navajo Nation has rights to ~700,000 acre-feet of water annually from the Colorado River. However, it does not have the infrastructure necessary to access their owed amount of water. This leaves about 40% of all Diné households without water. To put this into perspective, 99.2% of the entire U.S. population has continuous access to potable drinking water, whereas only 48% of the U.S. Indigenous populace has such access. For the 82 gallons of water accessed by the average non-Indigenous U.S. citizen per day, an average Indigenous citizen accesses only 7 gallons. Global warming has also decimated water levels in the Southwest region, particularly exacerbating tribal nations’ already limited water access.

By voiding any responsibility of the U.S. government to build water infrastructure in the Nation in this ruling, the U.S. has once again broken another contract between the Nation. The ruling also perpetuates the centuries-long discrimination that disproportionately exposes Indigenous peoples to environmental contaminants, radiation, extractive and polluting enterprises on tribal lands, and denies them continuous access to health,  education, and clean water.

Navajo Nation President Buu Nygren, although disappointed, “remain[ed] undeterred” and vouched that he will continue fighting to “represent and protect the Navajo people, [their] land, and [their] future.” The Native American Rights Fund also voiced that they “will continue to assert their water rights” despite the Court’s ruling.

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SCOTUS Continues Attacking Environmental Health

Photo credit: Getty Images, iStock.com

By Leila Waid.

It may come as a surprise that one of the biggest challenges facing environmental and public health is our judicial system – specifically the current U.S. Supreme Court. Out of the total nine Justices, six are conservative-leaning, and three are progressive-leaning. The Trump administration picked three of the current six conservative Justices – the same administration that posed several difficulties for environmental protection. The Trump-administration-packed Supreme Court, which saw the appointments of conservatives Gorsuch, Kavanaugh, and Coney-Barret, has repeatedly deteriorated environmental protections for all Americans.

The Supreme Court Justices have a chokehold on environmental health issues and have consistently voted to strip Americans of the right to a healthy environment. The most recent example of such an environmental health ruling is the Sackett v. Environmental Protection Agency ruling,which limits EPA’s ability to regulate wetlands under the Clean Water Act. This ruling will pose issues to the health and safety of the water because, unlike the Supreme Court’s logic that wetlands are separate from the rest of the U.S. water bodies, the truth is that all water is connected. Pollution in the wetlands will undoubtedly leak into our main drinking water supplies.

Another recent Supreme Court ruling that adversely affected environmental health and justice was the 2022 case West Virginia v. EPA. In this 6-3 ruling, all the conservative judges decided that the EPA should not be able to regulate carbon dioxide (CO2) emissions because they cannot restrict how much CO2 powerplants release. Carbon dioxide is one of the primary greenhouse gas emissions that has caused climate change.

One of the main issues with this current Supreme Court is that many of the Justices have an originalist interpretation of the law, and this belief often leads them to vote in ways that significantly limit the federal government’s power. Originalists believe the law can only “be interpreted as it was understood at the time of its adoption.” As one can imagine, this philosophy is wrong, considering the Constitution was written when only wealthy white males had any sort of power in the U.S. Is that the world these so-called originalist Justices want to live in? And if not, then why won’t they vote in such a way that reflects today’s values?

Originalism, at its core, is a flawed methodology. As Berkley Law Dean Erwin Chemerinsky stated, “the world we live in is so vastly different from 1787, when the Constitution was written, or 1791, when the Bill of Rights was adopted, or 1868, when the Fourteenth Amendment was ratified.”

For example, they do not want the federal government to regulate air and water pollution because they feel it will infringe on the state’s rights. But this argument is dangerous and flawed. Air and water don’t stop at states’ borders. And in the case of the carbon dioxide ruling, the effect this will have on climate change will not stop at the national border. The countries most impacted by a warming planet will be Low- and Middle-Income Countries.

How can we fight against such a dangerous group of individuals who have forsaken all reason and fairness in the face of environmental justice? One solution is to expand the court and enforce term limits. Experts argue that this approach will help make the judicial branch more democratic.

I will leave you with this quote from Elie Mystal, from his book Allow Me to Retort, about the dangers of the ultra-conservative Supreme Court: “Never accept the conservative interpretation of the Constitution. Never accept the conservative limitations placed on our political, civil, and social rights. They have literally always been wrong, and they are wrong now. Justice is not one constitutional option among many—it is a requirement of a free and equal society. Demand nothing less.”